The Fern Talks – Page 17901

In this detailed, step-by-step account, entertainment attorney Stephen Carlisle walks us through the arduous and complex process of sending a DMCA related takedown notice to Google

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Guest Post by Stephen Carlisle on Nova Southeastern University

As a postscript to the last blog post on DMCA takedown notices, I thought it might be helpful to understand what is involved in sending a takedown notice. Since Google receives more DMCA notices than anyone else on Planet Earth, let’s start there. Remember, I am an attorney with 26 years’ experience in the entertainment industries. I am not a neophyte, individual artist, or a clerk in a small indie record label. Given that experience, I think I have a leg up on your average John or Jane Doe artist since I know and understand copyright law and how the DMCA is supposed to function. Also note, that I have never sent a takedown notice to Google before, so this recounts my fresh, first time, out of the box experience.

Google received 75 million takedown notices in February of 2016 alone. ¹ It must be easy. Right?

Let’s get started!

1) Go to Google.com.

2) Look for the word “Copyright” at the bottom of the page.

3) Nope.

4) Look for the word “Legal.”

5) Nope.

6) Look for a link for “Contact” or “Contact Us.”

7) Nope.

8) Click on the link for “About.”

9) That’s not it.

10) Click on the link for “Terms.”

11) Scroll down…scroll down…

12) Aha! “Privacy and Copyright Protection.” Now we’re on our way!

13) Click on the link for “help center.”

14) Click on the link for “submit a legal request.”

15) Read the drop down menu.

16) Click on the link for the word “tool.”

17) Read a list of 12 choices.

18) Select “web search.”

19) Read a list of 8 choices. None of the choices mention the word “copyright.” Really? You invite me to submit a “legal request” and none of the choices are “copyright?” And you receive 75 million takedown notices a month?

20) Select “I have found a site that is engaging in suspicious behavior.”

21) This page is solely about phishing.

22) Go back.

23) Google will not let me go back. Must start over.

24) Repeat step 11.

25) Select “I have a legal issue that is not mentioned above.”

26) Aha! “Removing Content from Google” is one of the choices.

27) Select.

28) Warns me that they will send my notice to “The Lumen Project,” formerly “Chilling Effects,” and my notice will be published for all to see. Really? They haven’t even found out what I’m complaining about yet. This is intimidation tactic step #1.

29) “Are you the copyright owner or authorized to act on his/her behalf?”

30) Select “yes.”

31) Select from two choices: “image/video” and “other.”

32) To speed things up and avoid yet another menu that will inevitably go with “other,” select “image/video.”

33) Google asks for me to yes/no the question “The image/video is of yourself.” Why this matters, I can’t fathom. I have already said I am the copyright owner.

34) Select “yes.”

35) DMCA form? Nope. This warning appears:

“Under US law, copyright of a photograph/video is generally owned by the photographer/videographer unless the photo was taken as part of his/her responsibilities as an employee (in which case the image/video belongs to the employer) or the photographer/videographer entered into a written agreement to transfer the rights to the photograph/video to someone else. Therefore, a person who is the subject of a photograph/video is almost never the copyright owner (unless the person has obtained the rights to the photograph/video in a written agreement).

Only the copyright owner or an authorized representative can file a DMCA Infringement Notice on his/her behalf. Please note that you will be liable for damages (including costs and legal fees) if you materially misrepresent that a product or activity is infringing your copyrights.

(NB: The red is how it appears on the Google page)

If you still believe that you are the copyright owner in this case and can provide us with the written agreement in which the rights to the photograph/video were transferred to yourself, then please click here to fill in a form. Otherwise, we cannot process your notice. You may want the copyright owner to file a DMCA notice with us instead.”

Remember the Jennifer Lawrence-Kate Upton-Mykala Maroney nude pictures flap? ² Virtually all of them were “selfies” taken by the subject of the photographs. That makes them both photographer and subject, and they would own the copyright in the photographs. Yet Google says this.

“Therefore, a person who is the subject of a photograph/video is almost never the copyright owner (unless the person has obtained the rights to the photograph/video in a written agreement).”

This is a flat out misstatement of the law. If the picture is a “selfie,” the subject is the copyright owner. Plus, they threaten me with the prospect of damages and demands that I provide to them a written assignment of copyright or they will not process my request! This is intimidation tactic step #2.

36) Since I know better, I ignore this. Click the link for “here.”

37) Requests for me to enter my email address.

38) Email address entered. Click return.

39) “Sorry, Google doesn’t recognize that email. Create an account using that address?”

40) Click “next” in an attempt to bypass.

41) Google will not let me fill out a DMCA form unless I have created a Google Account.

42) Creating a Google Account will require me to divulge my name, email address, birthdate (?), gender (!), mobile phone number, location and fill out a captcha to prove I am not a computer. Some of this information I will have to provide in the takedown notice. Other information is completely irrelevant. This is intimidation tactic step #3.

43) And one more thing. I must agree to Google’s “Terms of Service” and “Privacy Policy” in order to create a Google Account. This is intimidation tactic step #4.

44) Google’s TOS runs for 4 pages. It provides in part. (all emphasis is in the original):

WE PROVIDE THE SERVICES “AS IS.”

SOME JURISDICTIONS PROVIDE FOR CERTAIN WARRANTIES, LIKE THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, WE EXCLUDE ALL WARRANTIES.

Liability for our Services

WHEN PERMITTED BY LAW, GOOGLE, AND GOOGLE’S SUPPLIERS AND DISTRIBUTORS, WILL NOT BE RESPONSIBLE FOR LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES.

TO THE EXTENT PERMITTED BY LAW, THE TOTAL LIABILITY OF GOOGLE, AND ITS SUPPLIERS AND DISTRIBUTORS, FOR ANY CLAIMS UNDER THESE TERMS, INCLUDING FOR ANY IMPLIED WARRANTIES, IS LIMITED TO THE AMOUNT YOU PAID US TO USE THE SERVICES (OR, IF WE CHOOSE, TO SUPPLYING YOU THE SERVICES AGAIN).

IN ALL CASES, GOOGLE, AND ITS SUPPLIERS AND DISTRIBUTORS, WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.

45) It also provides that California law applies and any suit must be litigated in California. To wit:

The laws of California, U.S.A., excluding California’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in the federal or state courts of Santa Clara County, California, USA, and you and Google consent to personal jurisdiction in those courts.

46) The Privacy policy runs 9 pages. Helpfully, they have provided a link so you can download a PDF of the policy, which I note, was updated just last week. https://static.googleusercontent.com/media/www.google.com/en//intl/en/policies/privacy/google_privacy_policy_en.pdf

At this point, I had to stop. It’s 46 steps into the process, and I have yet to even sniff the screen where I get to file my DMCA takedown request. I draw the line at giving up not only my personal information but certain legal rights in order to engage in a legitimate legal process authorized by Federal law.

lt’s supposed to be my right under the copyright act to file a takedown notice. Nowhere in section 512 does it give Google the right to demand I consent to its terms and conditions, including a limitation of liability, and a binding choice of litigation venue, binding choice of law and consent to personal jurisdiction, before it will allow me to let me file a takedown notice with them.

Google, you cannot tell me you are serious about fighting piracy when you deliberately put multiple roadblocks in the way of a copyright owner and engage in intimidation tactics to prevent the filing of a legitimate takedown request.

Notes:

Has Kanye West bagged himself a #1 album?

This may well be the case. But how did he do it? There is no physical copy of the album for fans to purchase, only a digital download available through Kanye’s own site, and up until last week the album was only available to stream via Tidal.

Well, Kanye West is pro at placing himself at the front-and-centre of controversial situations at any chance that he gets, which often makes people quickly dismiss his music strategic decisions for his need of headline dominance. But, Kanye definitely had bigger plans than bagging the latest headline. The exclusive strategy saw The Life Of Pablo streaming numbers soar. Tidal reported that the album was streamed over 250 million times in the first 10 days.

Prior to the album being released on Tidal, Kanye proclaimed that the album would ‘never never never’ be available on Apple Music or any other streaming service. This caused a craze in Tidal sign-ups with many claiming that he may have single-handedly doubled Tidal subscriber numbers. Though, after making this bold statement he then later ‘changed his mind’ and made the album available on both Apple Music and Spotify. But, this was not before his album had racked up hundreds of millions of streams solely from Tidal.

Beyond making bold statements that rally up a frenzy among his fans to listen to the album whilst doubling subscriber numbers for Jay Z’s Tidal, Kanye also gave his fans a reason to continue to stream the album over and over again.

Just as his fans had thought they’d had enough of listening to the album, Kanye announced that he was making significant alterations to numerous songs on the album, which he did – nearly every song on the album has had an update. The modifications include additions of reverb, alterations in background vocals, basslines and several other changes. So those fans that have already streamed the The Life of Pablo, continued to stream the album.

Since Billboard includes streaming figures and individual track downloads into their formula for Billboard 200 top albums chart it a large factor in determining chart success.

As a result of these changes, Kanye’s genius strategies for increasing streaming numbers may have bagged him the first #1 album fuelled by streaming and practically zero sales.

(Image by Kenny Sun, Creative Commons, Attribution 2.0 Generic, cc by 2.0)

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